IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

STATE FARM MUTUAL AUTOMOBILE : CIVIL ACTION

INSURANCE COMPANY et al., : NO. 05-5368

:

Plaintiffs, :

:

v. :

:

ARNOLD LINCOW et al., :

:

Defendants. :

M E M O R A N D U M

EDUARDO C. ROBRENO, J. August 20, 2009

Before this court is Plaintiff State Farm Mutual

Automobile Insurance Company’s and Plaintiff State Farm Fire and

Casualty Company’s (“Plaintiffs”) motion for Private Process

Server. Relying on Fed. R. Civ. P. 4(c)(3) (“Rule 4(c)(3)”),

Plaintiffs argue that a private process server is necessary to

expedite the service of 64 garnishments. Defendant Arnold

Lincow, D.O. (“Defendant”) has opposed Plaintiffs’ motion,

arguing that Pennsylvania law dictates the procedure for service

of a writ of execution and mandates the use of a sheriff as the

process server. 

I. FACTS AND BACKGROUND

On March 26, 2009, following a lengthy jury trial, this

Court ordered that judgment be entered in favor of Plaintiffs

against all Defendants in the amount of $4,049,741.00. (3/26/09

Judgment ¶ 1, doc. no. 593.) In addition to compensatory

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damages, punitive damages were also awarded against all

Defendants. Defendant Lincow was found personally liable for

punitive damages in the amount of $5,000,000.00. Id. ¶ 1. 

Defendant 7622 Medical Center, P.C. d/b/a 1900 S.G. Associates

and Allied Medical Group were found liable for punitive damages

in the amount of $2,500,000.00. Id. ¶ 6. Defendants Lawrence

Forman, D.O.; Richard Mintz, D.O.; Stephen Hennessy, D.C.; and

Richard Butow, D.C. were found liable for punitive damages in the

amount of $600,000.00 each. Id. ¶¶ 2-5. Defendants Medical

Management Consulting, Inc.; Allied Medical Group, P.C.; and

Jefron X-Ray, Inc. were found liable for punitive damages in the

amount of $500,000.00 each. Id. ¶¶ 7-9.

Plaintiffs have filed 12 writs of execution and are

seeking to serve upon 64 garnishees. (Pls.’ Motion (“Pls.’ Mot.”)

¶ 7, doc. no. 786.) Due to the complexity of this procedure and

the large number of garnishees that have to be served, Plaintiffs

are requesting leave to employ a private process server. 

Plaintiffs are willing to incur all the necessary financial

burdens involved in doing so. (Pls.’ Mot. ¶ 15.)

II. DISCUSSION

Of issue is whether this Court may allow Plaintiffs to

employ a private process server to serve any and all writs of

execution in this matter. Defendant asserts two arguments

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against the use of a private process server. First, Defendant

argues that Federal Rule of Civil Procedure 69(a)(1) requires

that this Court apply Pennsylvania Rule of Civil Procedure 3108,

which mandates that a writ of execution be served by a sheriff. 

Second, Defendant argues more generally that Plaintiffs’ use of a

private process server would deprive him of due process. 

A. Federal Rule of Civil Procedure 4(a)(3) Applies in

This Case

Rule 69(a)(1) provides that “a money judgement is

enforced by a writ of execution, unless the court directs

otherwise. The procedure on execution -- and in proceedings

supplementary to and in aid of judgement or execution -- must

accord with the procedure of the state where the court is

located, but a federal statute governs to the extent it applies.” 

Fed. R. Civ. P. 69(a)(1)

Defendant argues that Pennsylvania Rule of Civil

Procedure 3108 governs the instant case, requiring that a writ of

execution to a third party who is not the Defendant be served by

a sheriff. Pa. R. Civ. P. 3108. Defendant’s argument is flawed

in that it fails to recognize the primacy of Federal Rule of

Civil Procedure 4(c)(3).

Rule 4(c)(3) allows that “at the plaintiff’s request,

the court may order that service be made by a United States

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marshal or deputy marshal or by a person specially appointed by

the court.” Fed. R. Civ. P. 4(c)(3). See United Student Aid

Funds, Inc. v. Gary's Grading & Landscaping, No.

6:07-cv-1140-Orl-19DAB, 2009 WL 161711, at *6 (M.D. Fla. Jan. 21,

2009) (applying Rule 4(c)(3) and affirming that a marshal is not

required for there to be proper effectuation of service). Courts

have held that the procedures outlined in Rule 4(c) govern the

service of writs of garnishment in a proceeding in federal court. 

See United States ex rel. Tanos v. St. Paul Mercury Ins. Co., 361

F.2d 838, 839 (5th Cir. 1996) (enforcing the use of Rule 4(c) in

the face of conflicting state law); Mid-Continent Casualty Co. v.

Everett, 340 F.2d 65, 69 (10th Cir. 1965). Accordingly, in this

case, Rule 4(c)(3) specifically allows the Court to appoint a

private server instead of a marshal if it so chooses.

B. Due Process

Defendant makes a sweeping, yet unspecified claim that

his right to due process would be denied by the use of a private

server appointed by the Court. The cases cited by the Defendant

do not support his position. Jonnet v. Dollar Savings Bank of

the City of New York, 530 F.2d 1123 (3d Cir. 1976) is

distinguishable in that it concerns a dispute over the

constitutionality of the then Pennsylvania foreign attachment

statutes which permitted the issuance of a writ of execution

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without notice to the defendant. ABC Sewers Cleaning Co. v.

Foxco, Inc., No. 90-1934, 1990 WL 139391 (E.D. Pa. Sept. 21,

1990), Strick Corp. v. Thai Teak Prods. Co., Ltd., 493 F. Supp.

1210 (E.D. Pa. 1980), and Local Union No. 626 United Bhd. of

Carpenters & Joiners of Am. Pension Fund v. Delmarva Concrete

Corp., No. 02-648, 2004 U.S. Dist. LEXIS 4385 (E.D. Pa. Feb. 24,

2004) are just as unpersuasive in that these cases concern

disputes over the wrongful attachment of property of alter egos

and do not involve the identity of the process server. In fact,

the judge in Local Union No. 626 granted the plaintiff’s motion

to use a private process server to serve the writ of execution. 

2004 U.S. Dist. LEXIS 4385 at *3. Under these circumstances, no

Constitutional deprivation of Defendant’s rights would result by

Plaintiffs’ use of a private process server appointed by the

Court.

III. CONCLUSION

For the reasons set forth above, the motion to appoint

a private process server will be granted.

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